Widincamp v. Widincamp
| Decision Date | 14 February 1911 |
| Citation | 70 S.E. 566,135 Ga. 644 |
| Parties | WIDINCAMP v. WIDINCAMP. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
In an action of complaint for land, where the plaintiff relies for his recovery upon a warranty deed to said land executed to him by the defendant, and the latter admits the execution of the warranty deed of conveyance as set forth in the plaintiff's abstract of title, admits possession of the land and the value of the mesne profits as alleged in the petition, but sets up the affirmative defense of such fraud on the part of the plaintiff in the procurement of the execution of the deed as would, if established by proof render the deed void and subject to be canceled, and thereupon at the trial, before the introduction of any evidence, the defendant assumes the burden of proof and claims the right to open and conclude the argument, it is error on the part of the court to deny this right to the defendant; he having admitted a prima facie case in the plaintiff, and his claim of right to the opening and conclusion having been made in time.
There is no merit in the assignment of error attacking the charge as a whole upon the ground that it was argumentative, and gave too great prominence to the contentions of the plaintiff, and unduly emphasized those contentions by frequent repetition and to such an extent as to unduly influence the minds of the jury in favor of the plaintiff.
Grounds of a motion for a new trial, which are not referred to nor argued in the brief of counsel for plaintiff in error, will be considered as abandoned.
Error from Superior Court, Tattnall County; B. T. Rawlings, Judge.
Action by E. Widincamp against S. Widincamp. Judgment for plaintiff and defendant brings error. Reversed.
E. C Collins, A. S. Way, and Walter F. Grey, for plaintiff in error.
Isaiah Beasley and Hines & Jordan, for defendant in error.
E Widincamp brought complaint for land against S. Widincamp alleging that the latter is in possession of a certain tract of land to which petitioner claims title, being seised thereof in fee, and that the defendant has received the profits of said land since the 1st day of January, 1906, of the yearly value of $300, refusing to deliver the land to petitioner, or to pay him the profits thereof. An abstract of title to the land in controversy is attached to the petition, showing a warranty deed to the land from the defendant to the plaintiff, dated May 20, 1897, and duly recorded. The defendant filed his plea and answer, denying "each and every allegation in each and every paragraph of plaintiff's petition, except as hereinafter admitted." It is admitted that the defendant is in possession of the tract of land sued for, and refuses to deliver the same to plaintiff or to pay him the profits thereof; and the defendant says, further, that said tract of land is the right and property of himself, and that plaintiff has no right, title, or interest in or to the same. In substance this was the plea and answer as filed originally. Subsequently the defendant amended the answer The defendant in the remainder of the amendment, following that portion of the plea quoted above, sets forth facts showing that the warranty deed referred to was void for fraud in its procurement, and that he, being an ignorant and...
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United States v. A Certain Tract or Parcel of Land
...him, and he is entitled to open and conclude. Ga.Code (1933), § 38-103, and annotations; Broach v. Kelly, 71 Ga. 698(4); Widincamp v. Widincamp, 135 Ga. 644, 70 S.E. 566; Roberson v. Weaver, 145 Ga. 626(3), 630, 631, 89 S.E. 769; Norman v. McMillan, 151 Ga. 363(1a), 364(3), 107 S.E. 325; Wo......
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Hall v. McLendon
...the claimant to open and conclude the argument, and while this right is generally an important and valuable one ( Widincamp v. Widincamp, 135 Ga. 644, 70 S.E. 566), yet where, as in this case, the verdict as rendered demanded by the evidence, an erroneous ruling with reference to the right ......
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Hall v. Mclendon
...the claimant to open and conclude the argument, and while this right is generally an important and valuable one (Widincamp v. Widincamp, 135 Ga. 644, 70 S. E. 566), yet where, as in this case, the verdict as rendered was demanded by the evidence, an erroneous ruling with reference to the ri......
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Payne v. Thebaut
...of this privilege constituted reversible error, the evidence not demanding the verdict in favor of the plaintiff. Widincamp v. Widincamp, 135 Ga. 644, 70 S. E. 566; Norman v. McMillan, 151 Ga. 363 (3), 107 S. E. 325. A different ruling is not required because the defendant waived the genera......